Americans United - Elena Kaganhttps://www.au.org/tags/elena-kagan
enA New Low At The High Court: Justices Approve ‘Majority-Rules’ Government Prayer Schemehttps://www.au.org/blogs/wall-of-separation/a-new-low-at-the-high-court-justices-approve-majority-rules-government
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">This ruling is out of step with the realities of modern-day America, which is marked by expanding religious and philosophical diversity.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>By now you’ve probably heard that the U.S. Supreme Court this morning <a href="http://www.cnn.com/2014/05/05/politics/scotus-new-york-public-prayer/">upheld</a> the right of a city in New York to open its meetings with mostly Christian prayers.</p><p>Americans United litigated this case, <em>Town of Greece v. Galloway</em>, on behalf of two women who opposed the “majority-rules” prayer practice in Greece, N.Y. Obviously, we strongly oppose today’s ruling.</p><p>The decision was marked by a familiar 5-4 split. We will have a longer analysis of the case later, but for now consider this quote from Justice Elena Kagan, writing for the dissenters:</p><p>“In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment’s promise that every citizen, irrespective of her religion, owns an equal share in her government.”</p><p>That says it exactly. This ruling is out of step with the realities of modern-day America, which is marked by expanding religious and philosophical diversity.</p><p>In the lead opinion, Justice Anthony M. Kennedy asserts that some government-backed prayer might still be problematic.</p><p>“If the course and practice over time shows that the invocations denigrate nonbeliev­ers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort,” Kennedy wrote. “That circumstance would present a different case than the one presently before the Court.”</p><p>So, the high court is not willing to say what constitutes a “non-sectarian” prayer – but it is willing to at least entertain the idea that offensive and derogatory prayers can be a problem?</p><p>I suspect we haven’t seen the last of this issue.</p><p>One more thing: The majority opinion makes it clear that legislative prayer often isn’t coercive because the adults being exposed to it have options, such as leaving the room. So, if any misguided Religious Right activists out there is thinking this decision opens the door for a return of official school prayer, they can forget it. This decision is clearly limited to the context of legislative sessions.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/prayer-at-government-events-and-legislative-meetings">Prayer at Government Events and Legislative Meetings</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/town-of-greece-v-galloway">Town of Greece v. Galloway</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span></div></div>Mon, 05 May 2014 17:14:19 +0000Rob Boston9927 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/a-new-low-at-the-high-court-justices-approve-majority-rules-government#commentsSnapshots From The Supreme Court: Justices Ponder Limits Of Religious Expression In Birth Control Case https://www.au.org/blogs/wall-of-separation/snapshots-from-the-supreme-court-justices-ponder-limits-of-religious
<a href="/about/people/simon-brown">Simon Brown</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>Do for-profit corporations exercise religion? What constitutes a religious enterprise? What did Congress intend when it passed the Religious Freedom Restoration Act (RFRA) in 1993?</p><p>These and many other questions were batted about this morning as the U.S. Supreme Court heard oral arguments in the pivotal combined case of <em>Sebelius vs. Hobby Lobby </em>and <em>Conestoga Wood Specialties vs. Sebelius</em>. </p><p>I was fortunate to sit in the press gallery during the argument, and it seemed skepticism abounded on both sides.</p><p>Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan did not appear to support the primary claim of Hobby Lobby and Conestoga Wood: that secular, for-profit corporations should have a “religious freedom” right to be exempted from offering no-cost birth control to their employees in their employer-provided insurance plans.</p><p>“How does a corporation exercise religion?” Sotomayor asked. “[H]ow do we determine when a corporation has that belief? Who says it? Is it the majority of shareholders? What happens to the minority?”</p><p>All fair questions, and if Hobby Lobby and Conestoga Wood were honest, they would admit there is no easy answer to any of them.</p><p>But the attorney arguing on behalf of the two corporations, former U.S. Solicitor General Paul Clement, said “sincerity of belief” would be a key test in determining whether or not a corporation has a right to exercise religion.</p><p>That response raised an issue that Sotomayor called “dangerous.”</p><p>“That’s the most dangerous piece,” she said. “That’s the one we’ve resisted in all our exercise jurisprudence, to measure the depth of someone’s religious beliefs.”</p><p>But Clement had an answer for that, too.</p><p>“You can test sincerity,” he posited.</p><p>He then gave a far-fetched example of someone who was busted for marijuana possession, but claimed he belonged to “the church of marijuana” and had a “religious liberty” right to smoke pot. It’s silly, but if Hobby Lobby and Conestoga Wood succeed, who is to say that defense would not work in the future?</p><p>Later, Kagan noted correctly that Hobby Lobby and Conestoga Wood are not actually being forced to pay for birth control. Instead, any corporation has the option not to offer any health insurance, which would then trigger an annual tax of $2,000 per employee. The money raised would be used toward insurance coverage for those employees, and at about $26 million per year, would probably cost Hobby Lobby about the same amount as health insurance, Kagan said.</p><p>And that’s when Clement went off the rails. He said just as Hobby Lobby and Conestoga Wood object to paying for birth control, their religious conscience also dictates that they must directly provide health insurance. Simply opting out of offering insurance would be as offensive, Clement suggested, as providing contraceptives.</p><p>Kagan and Ginsburg were clearly flabbergasted by that argument, which neither corporation had previously offered.</p><p>“The provision of health care is not a religious tenet,” Ginsburg said.</p><p>As for the other justices, Antonin Scalia and Samuel A. Alito appeared firmly in Hobby Lobby’s camp, fully accepting the idea that First Amendment rights extend to corporations even at the expense of scores of individuals.</p><p>“Well, what is it about a for-profit corporation that is inconsistent with a free-exercise claim?” Alito asked.</p><p>Said Scalia to U.S. Solicitor General Donald Verrilli: “If – if [Congress] wanted you to balance – balance the interest of the religious objector against the interest of other individuals [who are affected by the objector’s policies], they – they made no reference to that in RFRA at all.” </p><p>Then there was Justice Anthony M. Kennedy, who is typically the swing vote in church-state matters. He didn’t tip his hand today but asked some thoughtful questions.</p><p>“How do you suggest we think about the rights of the employees?” he asked Clement – a key question in this matter. </p><p>Outside the court, hundreds of people fought frigid temperatures and steady, wet snow to voice their opinions on the case. Americans United has been an outspoken advocate for the rights of all Americans to access birth control without religious interference, and much of our staff was there to show support by speaking at rallies and holding signs. AU Executive Director Barry W. Lynn attended the argument and spoke to the media afterwards.</p><p>Hobby Lobby/Conestoga Wood supporters were far fewer, and, based on their signs attacking abortion and Obamacare, some of them seemed confused as to what the case is about. </p><p>Others seemed to think it was a dress-up ball (or perhaps Halloween). Members of the American Society for Tradition, Family and Property – a group of far-right Catholic men who pine for the Dark Ages – circulated through the crowd wearing red capes. One man in a kilt even played the bagpipes for them. (It’s unclear what role bagpipes play in a protest of the birth control mandate.)</p><p>It’s difficult to say how this case will turn out, but the importance of its outcome cannot be overstated. If corporations gain the right to be exempted from one law on religious grounds, there is no telling how many other statutes religious fundamentalists will seek to ignore in the future – all in the name of conscience.</p><p>The court has a difficult task at hand with many issues to consider. We won’t likely know how this shakes out until June, but we will eagerly await the outcome of this case. With so much at stake, this decision will likely have wide ramifications for a very long time.</p><p> </p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/reproductive-health-conscience-clauses-for-religious-objectors">Reproductive Health &amp; Conscience Clauses for Religious Objectors</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/religious-freedom-restoration-act">Religious Freedom Restoration Act</a></span>, <span class="field-item"><a href="/tags/hobby-lobby-conestoga-wood-specialties">Hobby Lobby. Conestoga Wood Specialties</a></span>, <span class="field-item"><a href="/tags/paul-clement">Paul Clement</a></span>, <span class="field-item"><a href="/tags/donald-verrilli">Donald Verrilli</a></span>, <span class="field-item"><a href="/tags/sonia-sotomayor">sonia sotomayor</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/samuel-alito">Samuel Alito</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span></div></div>Tue, 25 Mar 2014 20:02:18 +0000Simon Brown9753 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/snapshots-from-the-supreme-court-justices-ponder-limits-of-religious#commentsHigh Noon At The High Court: Justices Hear Arguments In Town Of Greece v. Galloway Casehttps://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-justices-hear-arguments-in-town-of-greece-v
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>I spent a frantic morning at the U.S. Supreme Court, where Americans United’s challenge to government-sponsored sectarian prayer, <em>Town of Greece v. Galloway</em>, was argued.</p><p>I wasn’t inside the court for the argument, but AU Executive Director Barry W. Lynn, Legal Director Ayesha N. Khan and several other AU staff members were. They reported a spirited session, with both sides being peppered with questions from the justices.</p><p>Justice Anthony M. Kennedy tends to be the swing voter in church-state cases. Kennedy <a href="http://abcnews.go.com/Politics/wireStory/supreme-court-hears-case-legislative-prayer-20799734">closely questioned</a> Douglas Laycock, a University of Virginia law professor who argued the case for Americans United, and Thomas Hungar, a Washington, D.C., attorney who works with the Alliance Defending Freedom, a Religious Right legal group that is representing the town of Greece.</p><p>At a press conference on the steps of the Supreme Court after the argument, both Laycock and Hungar refused to predict which way the court might rule. Both pointed out that it can be dicey to read too much into an oral argument or assume things based on a certain line of questioning from the justices.</p><p>Having said that, I do have to give some props to Justice Elena Kagan, who led off with a great question. Kagan recited a long, highly sectarian prayer and asked Hungar if it would be permissible to open a court session with that type of supplication. With one question, Kagan made it clear what this case is really all about: the ability of Americans to interact with government without first being required to take part in an act of religious worship.</p><p>Laycock underscored that idea during the press conference afterward. “We are here,” he said, “to support the right of citizens to participate in local government without having to take part in someone else’s religious worship.”</p><p>Plaintiffs Susan Galloway and Linda Stephens also spoke, bringing a personal dimension to the case.</p><p>“I feel that my town has aligned itself with Christianity,” said Galloway. “As a citizen, I felt that I was different because of my own beliefs.”</p><p>Galloway noted that refusing to participate wasn’t really an option. She recounted how she declined to stand for the prayer on one occasion and had “100 eyes looking at me. It singles you out.”</p><p>Stephens discussed some of the harassment she received over the case. Her property was vandalized twice, and she received a note telling her to move out of town. She called for the town to go back to the moment of silence it once used to open meetings, remarking, “We all need to be included.”</p><p>(The photo depicts Susan at the microphone. Linda is to the right, with Laycock upper left.)</p><p>AU’s Khan, who guided the case through the lower courts, also spoke.</p><p>“Under the town’s policy, a local government can expect its citizens to kneel in prayer that promises eternal hellfire to religious minorities,” Khan said. “That can’t possibly be constitutional. We’re here today to remind the highest court in the land that it is not.”</p><p>A decision in this case isn’t likely before June. I won’t make any predictions. I can tell you this: As I listened to Susan and Linda recount their experiences this morning outside the court, I have never been prouder of the work Americans United does – and I felt truly fortunate to be part of a team of fantastic people.</p><p>Many of you helped bring this case before the highest court in the land because you donated money, spoke out and undertook other activities to defend the church-state wall. Thank you.</p><p>We do this work for one reason: to help people secure the rights guaranteed to them in the U.S. Constitution. No matter how this case turns out, we will keep fighting. Our vision is of a day when government has no opinion on theology. We work toward a time when the state leaves decisions of when, how and if to pray to each citizen as guided by conscience. We envision a society where no branch of government presumes to meddle in the inviolable right of conscience held by its people.</p><p>That is our goal. It’s a worthy one. We’re proud of it, and, win or lose in Greece, we intend to keep working toward it.</p><p> </p><p><a href="http://www.scotusblog.com/2013/11/argument-recap-marshs-demise-or-its-renewal/">Read a Recap of Arguments from Scotusblog here.</a></p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/prayer-at-government-events-and-legislative-meetings">Prayer at Government Events and Legislative Meetings</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/douglas-laycock">Douglas Laycock</a></span>, <span class="field-item"><a href="/tags/barry-lynn">Barry Lynn</a></span>, <span class="field-item"><a href="/tags/ayesha-khan">Ayesha Khan</a></span>, <span class="field-item"><a href="/tags/greece">Greece</a></span>, <span class="field-item"><a href="/tags/alliance-defending-freedom">Alliance Defending Freedom</a></span>, <span class="field-item"><a href="/tags/thomas-hungar">Thomas Hungar</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span></div></div>Wed, 06 Nov 2013 19:36:40 +0000Rob Boston9132 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-justices-hear-arguments-in-town-of-greece-v#commentsHigh Noon At The High Court: Supreme Court Takes Up Marriage Equalityhttps://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-supreme-court-takes-up-marriage-equality
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">A lively debate over marriage equality at the U.S. Supreme Court. </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>I was fortunate enough to snag a seat in the press gallery for the oral argument before the U.S. Supreme Court this morning in the Proposition 8 case, <em>Hollingsworth v. Perry</em>.</p><p>Prop. 8 was narrowly approved by California voters in 2008. It added a ban on same-sex marriage to the state constitution. Opponents are challenging it in court, asserting that it violates the rights of gays and lesbians who wish to marry.</p><p>There were huge crowds outside the court sparring over the issue of marriage equality. In the court chambers, the atmosphere was less noisy but still spirited. But the one thing that struck me most about the debate was the elephant in the room that no one wants to acknowledge: religion.</p><p>Gays and lesbians in California found themselves stripped of marriage rights after a campaign spearheaded and funded primarily by the Church of Jesus Christ of Latter-day Saints (the Mormons), the Catholic hierarchy and the Religious Right.</p><p>Opposition to same-sex marriage is grounded in theological terms by the Religious Right and their sectarian allies. Marriage equality, we are told, violates God’s law. Yet this is the United States, and under our Constitution, we are not supposed to base our laws on religion.</p><p>Americans United and its allies <a href="https://www.au.org/media/press-releases/marriage-law-should-not-be-based-on-theology-americans-united-tells-supreme">raised this issue in a friend-of-the-court brief</a>, but the justices were not inclined to wrestle with that question this morning. Still, it was a very interesting argument, and I feel lucky to have heard it live.</p><p>Charles J. Cooper, the attorney arguing for the pro-Prop. 8 forces, asserted that there is an “earnest debate” over “the age-old definition of marriage.” He called the issue “agonizingly difficult” and insisted that the people should have the right to decide the matter, not the judicial system.</p><p>Cooper, like a lot of conservative opponents of marriage equality, linked marriage to procreation. He asserted that “responsible procreation is vital” to society and said same-sex marriage threatens to “sever its historic tie to procreative purposes.”</p><p>This sparked a discussion about whether infertile couples and elderly people could be denied the right to marriage. Cooper’s argument sparked some laughter when Justice Elena Kagan asked if a state could bar marriage to people over 55, assuming that they would not procreate. When Cooper asserted that such couples would not necessarily be infertile, Kagan quipped, “I can assure you…there are not a lot of children coming out of that.”</p><p>Asked directly by Justice Anthony Kennedy if he contends that same-sex marriage is harmful to society, Cooper said no. (Of course, that’s not the line taken by groups like the Family Research Council.) But Cooper did assert that there will be “real-world consequences” and that some of them might be “adverse consequences.” For example, he insisted that it’s unclear if children are harmed by same-sex parenting.</p><p>Theodore B. Olson, U.S. solicitor general in the George W. Bush administration, argued that Prop. 8 should be declared unconstitutional. A long line of court decisions, he argued, makes it clear that marriage is an individual right, not a societal one.</p><p>Olson argued forcefully but ran into trouble almost immediately from Justice Antonin Scalia, who demanded to know when same-sex marriage became a constitutional right. Olson was also questioned aggressively by Chief Justice John Roberts, who at one point seemed to argue that if marriage developed as an institution to benefit society, it doesn’t have to include everyone.</p><p>One of Olson’s better comebacks came when Justice Samuel Alito asked why civil unions were not enough, asserting that marriage “is just a label.” Olson said that would be like offering inter-racial couples an “inter-racial union” and added, “The label of marriage means something. There are certain labels in this country that mean something.”</p><p>In cases dealing with social issues, all eyes and ears tend to be on Justice Kennedy, who is considered a crucial swing vote. Kennedy questioned both attorneys this morning and was careful not to reveal his cards.</p><p>At one point, Kennedy noted that 40,000 children in California are being raised by same-sex parents and told Cooper that he is concerned about them.</p><p>“The voice of those children is important to this debate, don’t you think?” he asked, adding, “They want their parents to have the full recognition [of marriage].”</p><p>But Kennedy also badgered Olson, asserting that his argument was too broad and fretting that the court was being asked to “go into uncharted waters.” At one point, Kennedy even seemed to regret that the case was before the court, musing, “I just wonder if this case was properly granted?” (His remark drew a rebuke from Scalia, who snapped, “We’ve crossed that river!”)</p><p>I’m not an attorney and can’t say what will happen with this case. The court, however, has a way to dodge the case if it wants it. Since California’s state officials declined to defend Prop. 8 in court, the matter was turned over to a private entity.</p><p>If the Supreme Court decides that the private group had no right to act for the state and appeal Prop. 8, the court could toss the case entirely without even ruling on the constitutionality of same-sex marriage. If this happens, a lower court decision striking down Prop. 8 will go back into effect – but the ruling will be limited to California.</p><p>That would give the justices the option of avoiding a decision that sets a national precedent, something several of them seemed uneasy about doing. Some justices even asserted that same-sex marriage is too new of a concept to be before the high court.</p><p>If the court takes this avenue to avoid the issue, the question of the constitutionality of same-sex marriage will have to wait for another day.</p><p>P.S. Audio of the argument can be found <a href="http://www.supremecourt.gov/oral_arguments/argument_audio_detail.aspx?argument=12-144">here</a>.</p></div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/marriage-including-same-sex-marriage">Marriage (including same-sex Marriage)</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/anthony-kennedy">Anthony Kennedy</a></span>, <span class="field-item"><a href="/tags/antonin-scalia">Antonin Scalia</a></span>, <span class="field-item"><a href="/tags/samuel-alito">Samuel Alito</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/same-sex-marriage">same-sex marriage</a></span>, <span class="field-item"><a href="/tags/family-reasearch-council">Family Reasearch Council</a></span>, <span class="field-item"><a href="/tags/california">California</a></span>, <span class="field-item"><a href="/tags/mormons">Mormons</a></span>, <span class="field-item"><a href="/tags/prop-8">Prop 8</a></span></div></div>Tue, 26 Mar 2013 18:39:16 +0000Rob Boston8164 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/high-noon-at-the-high-court-supreme-court-takes-up-marriage-equality#commentsTax Credit Tangle: Supreme Court Considers Legality Of Ariz. Religious School Aid https://www.au.org/blogs/wall-of-separation/tax-credit-tangle-supreme-court-considers-legality-of-ariz-religious-school
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The Arizona tax-credit scheme is nothing but a boondoggle for funding religious schools on the taxpayers’ dime. </div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p><strong> </strong></p>
<p>The Supreme Court heard oral arguments this morning in an important case dealing with government aid to religion.</p>
<p>Two issues are at stake in <em>Arizona Christian School Tuition Organization v. Winn</em>. The high court will decide whether an Arizona program that gives taxpayers a 100 percent credit for money they donate to private organizations that provide private school vouchers is constitutional.</p>
<p>The justices will also determine whether taxpayers have the right to challenge the program – a legal doctrine known as “standing.”</p>
<p>As I sat in the Supreme Court press gallery, I couldn’t help but feel overwhelmed by a barrage of talk about tax credits, deductions and charitable donations. Several of the conservative justices seemed intent on arguing that the money given to these groups is akin to a charitable contribution, asserting that it’s not really government funds.</p>
<p>[caption id="attachment_3060" align="alignleft" width="300" caption="AU staffers (l to r) Sandhya Bathija, Alex Luchenitser and Rob Boston in front of the Supreme Court after the Arizona Christian School Tuition Organization v. Winn argument."][/caption]</p>
<p>Paul Bender, the attorney arguing on behalf of the taxpayers who want to challenge the program, pointed out that Arizona residents have two choices: Pay the money as part of their taxes or contribute it to a voucher group.</p>
<p>It seems pretty clear: The state is losing funds that would otherwise end up in the general coffers. Almost all of that cash is instead being used to pay for tuition at religious schools.</p>
<p>There was a time when a scheme like this would have been struck down by the Supreme Court in a heartbeat. But unfortunately, those days are behind us. Appointees made to the bench during the tenures of President George H.W. Bush and his son George W. Bush have a crabbed view of church-state separation – especially when it applies to tax funding of religion.</p>
<p>As <em>Church &amp; State</em> <a href="http://www.au.org/media/church-and-state/archives/2010/09/backdoor-vouchers-slip-into.html">reported in September</a>, the Arizona scheme is nothing but a boondoggle for funding religious schools on the taxpayers’ dime. In 2009, 91.5 percent of the $52 million collected went to religious institutions. Worse yet, although the program was pitched as a way to help low-income children, it contains no income test. Most of the people taking advantage of it are middle and upper class.</p>
<p>Remarkably, Acting Solicitor General Neal K. Katyal appeared before the justices to argue on behalf of the program. For some reason, the Obama administration thought it would be a good idea to join groups like TV preacher Pat Robertson’s American Center for Law and Justice, Jerry Falwell Jr.’s Liberty Counsel, the U.S. Conference of Catholic Bishops, the Christian Legal Society, the Alliance Defense Fund and others supporting this ill-conceived plan. (I was pleased to hear Katyal’s old boss, new Justice Elena Kagan, subject him to some grilling.)</p>
<p>Bender argued that the government is using private entities to do something the state cannot legally do: funnel students into religious schools that discriminate on the basis of religion.</p>
<p>Justice Stephen Breyer, who seems to enjoy playing devil’s advocate, asked Bender if the government could set up a program to aid Catholic, Jewish and secular hospitals to help cancer patients. He asked how this would differ from the Arizona program.</p>
<p>Bender’s answer was spot on: He said a program like that would be acceptable – unless, for example, the Catholic hospital announced it would only help Catholic cancer patients. That’s just what many of the religious schools in Arizona do: If you’re not willing to conform to the “right” religion, you don’t get a true choice of schools.</p>
<p>I don’t know how this case is going to shake out. The usual suspects (Chief Justice John Roberts, Justice Antonin Scalia and Justice Samuel Alito) were hostile to Bender in their questioning. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Kagan seemed to lean in the separationist direction.</p>
<p>Justice Clarence Thomas hardly ever asks questions during oral arguments but always sides with the conservatives on church-state issues. That leaves Justices Anthony M. Kennedy and Breyer sitting somewhere in the middle. Their votes will probably determine the case.</p>
<p>A split decision is also possible. The court could uphold the right of taxpayers to sue but still rule in favor of the program. Or they could deny taxpayers’ <a href="http://www.acslaw.org/node/17469">right to sue</a> and dismiss the case without even considering the church-state issues.</p>
<p>The decision will come by the end of June. And when it does, AU will have a full analysis.</p>
</div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/arizona">Arizona</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/courts">In the Courts</a></span>, <span class="field-item"><a href="/tags/neal-k-katyal">Neal K. Katyal</a></span>, <span class="field-item"><a href="/tags/paul-bender">Paul Bender</a></span>, <span class="field-item"><a href="/tags/stephen-breyer">Stephen Breyer</a></span>, <span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/tuition-tax-credits">tuition tax credits</a></span></div></div>Wed, 03 Nov 2010 17:21:23 +0000Rob Boston2129 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/tax-credit-tangle-supreme-court-considers-legality-of-ariz-religious-school#commentsElena And The End-Times: Will Kagan Usher In The Apocalypse? (The Religious Right Thinks So)https://www.au.org/blogs/wall-of-separation/elena-and-the-end-times-will-kagan-usher-in-the-apocalypse-the-religious
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">The Religious Right’s salvos against Elena Kagan aren’t getting any traction – and they just keep getting more and more pathetic.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p>Confirmation hearings for Supreme Court nominee Elena Kagan are in full swing, and as Americans United had hoped, we’re getting some questions about separation of church and state.</p>
<p>Yesterday, Sen. Dianne Feinstein (D-Calif.) asked Kagan about the relationship between the First Amendment’s “Establishment Clause,” which bars laws “respecting an establishment of religion” and the Free Exercise Clause,” which curbs laws “prohibiting the free exercise” of religion. Together they provide for religious liberty and the separation of church and state.</p>
<p>“What will be your approach to interpreting the Establishment Clause of the Constitution, and how do you believe it works with the Free Exercise clause?” Feinstein asked.</p>
<p>Kagan’s answer was long and legalistic. (You can read our blogger buddy Don Byrd’s account of the whole thing <a href="http://www.bjconline.org/index.php?option=com_content&amp;task=view&amp;id=3660&amp;Itemid=134">here</a>.)</p>
<p>The crux of her answer was this: “In general, I think, what both First Amendment clauses are designed to do – and this is the way in which they work hand in hand with each other – what they’re both designed to do is to ensure that you have full rights as an American citizen. You are a part of this country, no matter what your religion is, and to ensure that religion just never functions as a way to put people because of their religious belief or because of their religious practice at some disadvantage with respect to any of the rights of American citizenship. So, I think that that's the sort of overall purpose of both parts of the amendment.”</p>
<p>Not a bad answer. I’d still like to hear Kagan questioned about the church-state views of Thomas Jefferson and James Madison and how her thoughts stack up with those founders. And I’d like to know more about her views on the intersection of religious liberty and civil rights law. Maybe later.</p>
<p>Meanwhile, the Religious Right has found itself in a real bind. The conventional wisdom is that, barring some sort of dramatic, last-minute revelation, Kagan will be confirmed. But Kagan was nominated by President Barack Obama, whom the Religious Right despises, so groups in that movement feel compelled to attack her. (Plus, it’s good for fund-raising.)</p>
<p>The problem is, the Religious Right’s salvos aren’t getting any traction – and they just keep getting more and more pathetic.</p>
<p>Consider Religious Right stalwart, conspiracy theorist and hack novelist Tim LaHaye. LaHaye, a godfather of the Religious Right, is charging that Kagan is a “globalist” who secretly yearns to usher in one-world government. (You know, like they have on “Star Trek.”)</p>
<p>One-world government is a long-running obsession of LaHaye, a founder of the secretive Council for National Policy. The fact that there isn’t any serious effort under way to create such global rule doesn’t stop him. In fact, it just makes him more suspicious – it’s obviously a cover-up!</p>
<p>LaHaye, who made millions peddling his “Left Behind” series of apocalyptic potboilers, is back with a new work of fundamentalist science fiction called <em>Edge of Apocalypse</em>. Written with Religious Right attorney Craig Parshall, <a href="http://www.amazon.com/Edge-Apocalypse-End-Tim-LaHaye/dp/0310326281/ref=sr_1_1?ie=UTF8&amp;s=books&amp;qid=1277924134&amp;sr=1-1"><em>Edge of Apocalypse</em></a> tells the story of Joshua Jordan, a former spy-plane pilot whose efforts to create a missile-defense shield rile up globalist forces and inadvertently spark Armageddon. (“Honey, I blew up the world! Oops!”)</p>
<p><em> </em></p>
<p>What does any of this have to do with Kagan?</p>
<p>You got me, but for some reason, LaHaye decided to light into her on a blog promoting his new book. In a desperate attempt to link his goofy tome to current events,<a href="http://edgeofapocalypsetoday.com/"> he warns darkly</a> that Kagan and other “globalists” on the high court “could begin radically steering us away from view of the Constitution that honors our Judeo-Christian heritage and founding.”</p>
<p>Fulminates LaHaye, “With Elena Kagan on the Supreme Court, international legal standards could well be imposed on American citizens by the High Court’s legal globalists even without the need for Senate approval of specific international treaties. In our new novel, <em>Edge of Apocalypse</em>, we show how this trend could create a legal nightmare for conscientious Christians.”</p>
<p>What does Kagan really believe about international law?</p>
<p>Prodded by Republican senators about the issue on Tuesday, Kagan <a href="//hosted.ap.org/dynamic/stories/U/US_KAGAN_INTERNATIONAL_LAW?SITE=AP&amp;SECTION=HOME&amp;TEMPLATE=DEFAULT&amp;CTIME=2010-06-29-15-21-38">patiently explained</a> that while it can provide ideas for U.S. courts, it’s clearly not binding.</p>
<p>As I’ve said in a <a href="http://blog.au.org/2010/06/25/borking-kagan-failed-high-court-candidate-lashes-out-at-latest-nominee/">previous post</a>, I don’t know what kind of justice Kagan will turn out to be. I’m hopeful she’ll be in the mold of John Paul Stevens, the jurist she aims to replace. But we don’t know that because her record is scanty. That’s why AU asked the Senate Judiciary Committee to do its job by questioning Kagan thoroughly on church-state issues.</p>
<p>The Religious Right has decided on another course: screaming that Kagan is a judicial activist, a far-left maniac, an unqualified empty pantsuit and now a dupe for the great globalist one-world government conspiracy.</p>
<p>At this point, they’re just throwing anything out there and praying it sticks. It isn’t.</p>
<p>Really, if this is the best these groups can do, I’d suggest they bow to the inevitable and go home.</p>
<p>Edge of Apocalypse? Edge of insanity is more like it.</p>
</div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/fighting-religious-right">Fighting the Religious Right</a></span>, <span class="field-item"><a href="/issues/judicial-nominations">Judicial Nominations</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/council-national-policy">Council For National Policy</a></span>, <span class="field-item"><a href="/tags/craig-parshall">Craig Parshall</a></span>, <span class="field-item"><a href="/tags/dianne-feinstein">Dianne Feinstein</a></span>, <span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/supreme-court">Supreme Court</a></span>, <span class="field-item"><a href="/tags/tim-lahaye">Tim LaHaye</a></span></div></div>Thu, 01 Jul 2010 14:24:04 +0000Rob Boston2097 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/elena-and-the-end-times-will-kagan-usher-in-the-apocalypse-the-religious#commentsBorking Kagan?: Failed High Court Candidate Lashes Out At Latest Nominee https://www.au.org/blogs/wall-of-separation/borking-kagan-failed-high-court-candidate-lashes-out-at-latest-nominee
<a href="/about/people/rob-boston">Rob Boston</a><div class="field field-name-field-blog-type field-type-taxonomy-term-reference field-label-hidden"><div class="field-items"><div class="field-item even"><a href="/blogs/wall-of-separation">Wall of Separation</a></div></div></div><div class="field field-name-field-callout field-type-text-long field-label-hidden"><div class="field-items"><div class="field-item even">Ironically, Robert Bork wasn’t ‘borked’ – in the sense that he was subjected to unfair treatment. It was his own extreme views that did him in.</div></div></div><div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="prose"><p><strong> </strong></p>
<p>Monday will be a big day for the U.S. Supreme Court. The justices will hand down a ruling in a closely watched church-state case, <a href="http://www.au.org/media/church-and-state/archives/2010/02/the-battle-of-hastings.html"><em>Christian Legal Society v. Martinez</em></a>, and the Senate Judiciary Committee will begin hearings on justice nominee Elena Kagan.</p>
<p>The Kagan nomination is getting a lot of attention because little is known about her views. Unfortunately, it also dredged up a figure from the past I had hoped we had long ago seen the last of: Robert Bork.</p>
<p>I began my tenure at Americans United in November of 1987 – just weeks after the U.S. Senate voted to reject Bork’s appointment to the Supreme Court. Americans United and an array of other organizations strongly opposed his confirmation.</p>
<p>I missed fighting the Bork battle but did write my first-ever story for <em>Church &amp; State</em> about Anthony M. Kennedy, the man who got the seat Bork coveted.</p>
<p>That was nearly 24 years ago – and it’s obvious Bork is still bitter about what happened to him.</p>
<p>Since then, Bork has periodically resurfaced in my life. I’ve heard him speak at several Religious Right meetings, and I’ve read about his periodic comments in the press.</p>
<p>Now Bork is popping off about Kagan. He <a href="http://blogs.abcnews.com/politicalpunch/2010/06/judge-robert-bork-blasts-elena-kagan.html">blasted her</a>, telling an anti-abortion group that the nominee “has not had the time to develop a mature philosophy of judging” and “hasn’t had any experience that would lead her to mellow.… [T]he academia is not a place where you use prudence and caution and other virtues of a judge.”</p>
<p>Let me get this straight: Bork, who has gone so far to the right over the years that he long ago fell off the edge, thinks Kagan needs to “mellow”?</p>
<p>This is the Bork who denied that the Constitution contains a right to privacy. This is the Bork who has advocated amending the Constitution to allow a super-majority of Congress to overturn Supreme Court rulings. (So much for that “separation of powers” thing!) This is the Bork who opposed banning discrimination in public accommodations saying it would “compel association even where it is not desired.”</p>
<p>This is the Bork who said “not much would be endangered” if official prayer were reintroduced in public schools and more religious symbols were erected at government sites.</p>
<p>This is the Bork who, when asked at a public forum about a Jewish boy who was humiliated over state-mandated Christian exercises in public schools, blithely commented, “So what? I’m sure he got over it.”</p>
<p>The American people were not impressed with Bork’s extreme views, and they let the Senate know that. When his confirmation vote came, it wasn’t even close – 58 against and 42 for. Ironically, although his last name became a verb, Bork wasn’t “borked” – in the sense that he was subjected to unfair treatment. <em>It was his own extreme views that did him in.</em></p>
<p>And today, Bork just keeps it up. He told Americans United for Life that if Kagan is confirmed, “you will have a court that is much more to the left than we have today.”</p>
<p>Can the man not count? Let’s say Kagan turns out to be as progressive as the justice she hopes to replace, John Paul Stevens (a big assumption, by the way). The court would maintain status quo. Unless Kagan finds a way to finagle two votes or somehow persuades Justice Antonin Scalia to join her side, the high court’s ideological balance will not change.</p>
<p>I don’t know what kind of justice Kagan will turn out to be. Americans United has urged the Senate Judiciary Committee to ask her some pointed questions about separation of church and state. We are hoping for some tough (but respectful) interrogation. We’re happy to see the process play out, and we don’t need the type of crude attacks Bork has become famous for.</p>
<p>Everyone has the right to express an opinion about Kagan. But some people have opinions so ill-informed or extreme that they are not worth listening to. Bork is one of those people. I am so glad he never made it onto the Supreme Court!</p>
<p>You didn’t get the high court seat, Bob. Get over it.</p>
<p><a href="http://blogs.abcnews.com/politicalpunch/2010/06/judge-robert-bork-blasts-elena-kagan.html"><br /></a></p>
</div></div><div class="tags clearfix"><div class="field-label">Issues:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/issues/judicial-nominations">Judicial Nominations</a></span></div></div><div class="tags clearfix"><div class="field-label">Tags:&nbsp;</div><div class="field-items"><span class="field-item"><a href="/tags/elena-kagan">Elena Kagan</a></span>, <span class="field-item"><a href="/tags/robert-bork">Robert Bork</a></span>, <span class="field-item"><a href="/tags/us-supreme-court-0">U.S. Supreme Court</a></span></div></div>Fri, 25 Jun 2010 15:51:52 +0000Rob Boston2095 at https://www.au.orghttps://www.au.org/blogs/wall-of-separation/borking-kagan-failed-high-court-candidate-lashes-out-at-latest-nominee#comments